Energy company E.ON has fought long and hard to escape, but on 22 November 2012 the Court of Justice of the European Union (ECJ) confirmed that it must pay a fine of EUR38 million imposed by the EC for breaking a seal affixed during a dawn raid.
The story began in May 2006, when the EC carried out a raid at an E.ON subsidiary. As the raid could not be completed in one day, certain documents were stored in a room overnight. The door of the room was locked and an official EC seal affixed. EC seals are designed so that, if removed, ‘VOID’ markings appear. When the EC team returned on the morning of the second day of the raid, they found that the ‘VOID’ marking was visible on the seal. As a result, in 2008, the EC imposed the fine.
E.ON lost its appeal to the General Court against this decision and has now lost its subsequent and final appeal to the ECJ. To escape, the ECJ found, E.ON would have needed to demonstrate that it had not broken the seal. It had however not produced evidence to this effect. Further, the fine was not excessive, bearing in mind the company’s group turnover.
The EC is still intent on these cases. In May 2011, it fined a subsidiary of French group Suez for the same offence and it has made it clear that it will continue to pursue this and other types of obstruction issues which occur during raids.
There is a simple message from this: if the EC uses a seal at your premises, pay someone to guard it overnight (and, more generally, be very careful with non-cooperation on a raid). The downside could be huge.